Emails: Comptroller's lawyers consulted in secret Assembly payout

Emails show comptroller lawyers consulted in secret Assembly payout

Updated 8:09 am, Thursday, September 13, 2012

ALBANY — Public statements by the Office of the Comptroller on its role in the confidential settlement of sexual harassment charges against a ranking lawmaker did not sit right with the Assembly lawyer who spearheaded the deal, according to emails provided by Comptroller Thomas DiNapoli's records unit on Wednesday.

The OSC, honoring a Freedom of Information Law request for communications involving the confidential settlement, didn't simply process the settlement and look at it to evaluate income tax implications, according to an email from one of Assembly Speaker Sheldon Silver's top lawyers, William Collins.

"This is not true," he wrote, responding to a news release from the OSC.

Collins said lawyers for DiNapoli wanted to discuss the size of the pre-litigation settlement informally with the attorney general's office "to feel comfortable" with the six-figure range of the package.

Three veteran OSC lawyers passed around copies of drafts and the final settlement, which ended up costing taxpayers $103,080 and Assemblyman Vito Lopez, a Brooklyn Democrat, $32,000.

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The drafts and final deal called for strict confidentiality of the names of all parties involved, and imposes a whopping penalty for anybody breaking the silence.

A third OSC lawyer in the matter, Mary Anne Tommaney, appears to have been the most involved, having offered settlement language that was incorporated in the deal, described by Collins as "payments ... not intended to replace lost salary" or offer "a quick resolution so as to avoid adverse publicity." It was to be compensation to two women who would be leaving the Assembly payroll for their emotional distress and suffering.

Tommaney said in a June 14 email that the deal seemed to conform with her advice because of the two women splitting the settlement, the employee with the lower wages would get the biggest chunk.

That woman had been exposed to "more egregious harassment," proving the matter involved compensatory damages as opposed to lost wages.

The settlement reflected language and a process Tommaney recommended, specifically that the law firm handling the women's claims be paid the money and bear any liability should taxing authorities seek payments.

The deal was being fashioned by Collins and Lopez's lawyers, with advice from Attorney General Eric Schneiderman's assistant Arlene Smoler. A spokesman for Schneiderman has characterized the attorney general's role as providing informal consultation on settlement matters.

Email correspondences from Collins show he referred to Groenwegen as a personal friend of 30 years, and cited Tommaney as a law school classmate. He wrote to the OSC lawyers asking them to review the proposed settlement he worked out and let him know if they found anything problematic.

The penalty for talking about the settlement or revealing its details was set at $20,000 or actual and punitive damages, whichever is greater, according to the settlement Collins signed on June 6, the day the two women, identified as "L" and "R," were required to resign from the Assembly. An earlier draft, Collins' third try at a final package, set the punishment at $10,000.

Collins wrote in a follow-up email on Aug. 31 — after the allegations against Lopez and the settlement became public — that OSC recommended the payment method, which he had adopted.

"I never had any discussion with any OSC lawyer about the confidentiality clause," he wrote. "I believe Nancy directly forwarded my drafts to John Dalton to handle technical advice and she told me she didn't look at my drafts. I believe her."

Freeman, DiNapoli's spokeswoman, said the OSC's role was largely to advise on the tax consequences if the payments represented back pay or front pay.

She said changes in how the comptroller's office engages in settlement matters will be coming after a review, which was pledged by DiNapoli in recent days.